¶1BRENNAN,
J. Godfrey & Kahn, S.C., petitions for a supervisory
writ of prohibition, pursuant to Wis.
Stat. § 809.51 (2009-10),[1] to prevent
the trial court, Reserve Judge Dennis J. Flynn presiding, from signing and
entering a judgment against Godfrey & Kahn for legal bills and costs in Stone
v. Midwest Air Group, Inc., Milwaukee County Circuit Court Case No.
2008CV15335. In an oral ruling at a
post-verdict motion hearing, the trial court, sua sponte, invoked its inherent authority and said that it was
sanctioning Godfrey & Kahn, the law firm representing Midwest Air Group,
Inc., “in the exercise of its discretion under case law and statutory law, and
to penalize the conduct disruptive to the administration of justice.”

¶2Godfrey
& Kahn argues that a writ of prohibition is necessary because the basis for
the trial court’s sanction was the law firm’s pre-litigation legal advice, which is not a permissible basis for
the exercise of inherent power, especially where, as here, the law firm was
never given notice or an opportunity to be heard prior to the sanction.Christopher Stone, the party whose legal
costs and fees Godfrey & Kahn was ordered to pay, argues that the writ
should not issue because the trial court’s sanction was imposed, not for
Godfrey & Kahn’s pre-litigation conduct, but for its trial strategy, which
is a permissible basis for the trial court’s exercise of inherent authority.

¶3We
conclude that the record, particularly the trial court’s own words in its
ruling, clearly shows that the trial court imposed the sanction for
pre-litigation legal advice that the trial court believed Godfrey & Kahn
had given to its client, Midwest.And
while it is well-established law in Wisconsin that trial courts have broad
inherent powers to enable them to function as courts, seeState v. Cannon, 196 Wis. 534, 536, 221 N.W. 603 (1928) (“Such
powers have been conceded because without them [courts] could neither maintain
their dignity, transact their business, nor accomplish the purposes of their
existence.”), neither party cites to any legal authority justifying the
exercise of inherent powers to sanction for pre-litigation legal advice, nor
could we find any.Rather, the test for
whether a court can invoke its inherent power to sanction is whether such action
is necessary for the court to properly function.SeeState
v.Braunsdorf, 98 Wis. 2d 569, 580, 297 N.W.2d 808 (1980) (“These
cases teach that an inherent power is one without which a court cannot properly
function.”); see alsoJacobson
v. Avestruz, 81 Wis. 2d 240, 245-46, 260 N.W.2d 267 (1977) (“‘The
general control of the judicial business before
it is essential to the court if it is to function.’”) (emphasis added;
citation omitted).

¶4Here, the
pre-litigation legal advice on which the trial court based its sanction did not
occur in the presence of the trial court, nor did it impede the trial court’s
ability to function as a court.Seeid.Indeed, the trial had been completed, and the verdicts had been rendered
and affirmed by the time the trial court imposed the sanction.Thus, we conclude that the trial court lacked
a legal basis for invoking its inherent powers and issuing the sanction.

¶5Finally,
we conclude that a writ of prohibition, while a drastic remedy that should be
used with caution, is appropriate here because the trial court lacked authority
for the sanction and no other appellate remedy is realistically available to
Godfrey & Kahn.As such, we grant
the petition for a supervisory writ of prohibition and thereby prohibit the
circuit court from entering judgment against Godfrey & Kahn for the
opposing party’s legal bills and costs.

BACKGROUND

¶6In order
to properly address Godfrey & Kahn’s petition for a writ of prohibition, we
need to examine some of the facts underlying Stone, and the procedural
history of that case leading up to the trial court’s ruling that Godfrey &
Kahn was responsible for the opposing party’s attorney’s fees.We set forth those facts here.

¶7In
October 2008, Stone sued Midwest for breach of his employment contract (otherwise
known as the Key Executive Employment and Severance Agreement or “KEESA”) and breach
of the implied duty of good faith and fair dealing.Godfrey & Kahn was not and never has been
a party to that action; rather, Godfrey & Kahn represented Midwest. Due to judicial rotations and illness, several
trial court judges presided over pretrial discovery and dispositive motions. Judge Flynn was assigned to the case on the
eve of trial in February 2011.

¶8In March 2011,
the matter went to trial.The trial
revealed the following facts concerning Stone’s termination that are pertinent
to Godfrey & Kahn’s petition.

¶9On May
30, 2008, Timothy Hoeksema, Midwest’s chief executive officer, met with Stone
and told him that “based on performance, it was time that we talked about him
leaving Midwest.”Hoeksema planned to
meet with Stone again the following week to discuss the “specifics,” including
Stone’s severance package.Before the
second meeting, Hoeksema became concerned about reports that Stone had sexually
harassed several female employees.As
such, when Hoeksema met with Stone again on June 3, 2008, he informed Stone that
Midwest would be investigating the reported conduct.Hoeksema testified at trial that Midwest
engaged Godfrey & Kahn on June 3, 2008.

¶10Midwest
conducted an internal investigation, and Stone was interviewed, on July 23, 2008,
about the complaints against him. On
July 25, 2008, via email, Hoeksema advised Stone that the “details of the
investigation were provided to [Midwest’s] outside counsel [Godfrey & Kahn].
They have [sic] advised that sufficient
evidence exists for [Midwest’s] Board of Directors to consider whether to
terminate you for ‘cause’ in accordance with the terms of your KEESA.” In addition, the email notified Stone that if
he had any written materials he wanted the Board to consider, he must submit
them by July 30, 2008.

¶11Thereafter,
on July 28, 2008, Midwest sent Stone a formal notice that the issue of whether
to terminate him for cause would be considered at the Board’s August 4, 2008
meeting.Immediately after receiving the
notice, in anticipation of the August 4 Board meeting, Stone emailed Midwest’s
in-house counsel, David Sislowski, requesting “copies of any documentation that
is being sent by [Midwest] to our Board members in anticipation of this
meeting.…This includes any documents
prepared by [Godfrey & Kahn] justifying their [sic] recommendation of
termination for cause.” The next day
Stone emailed Sislowski again, on the advice of his attorney, reminding
Sislowski to send “all of the notes and documents that were part of [Midwest’s]
investigation, and which led to [its] questions … in the investigatory
interview.”

¶12The
following day, on July 30, 2008, in compliance with the deadline set by Midwest
for submission of his defensive materials, and despite the fact that he had not
yet received any discovery from Midwest, Stone submitted a letter to the Board
vigorously denying that he had engaged in any conduct that would justify his
termination for cause.In the letter,
Stone generally denied that he had engaged in any inappropriate conduct, and
asked the Board to refer to the responses to the accusations that he had given
to the investigator in his July 23 interview.

¶13In a July
31, 2008 letter, Attorney Michael D. Huitink, an attorney with Godfrey &
Kahn, informed Stone’s lawyer that Midwest would not be turning over all the notes and documents relating to
its investigation of the allegations made against Stone because “nowhere does
the KEESA require Midwest to turnover [sic] such documents. Moreover, Midwest has serious concerns about
inappropriate disclosure or retaliation against its employees that may occur if
it turns over such documentation to Mr. Stone.”Nonetheless, the letter further stated that Midwest would provide Stone
with the Final Investigation Report, which would be considered by the Board,
provided that Stone agreed, by signing and returning the letter, that:(1) the report would only be reviewed by
Stone and his lawyer; (2) Stone and his lawyer would not duplicate or
disseminate the report; and (3) Stone would not retaliate against or contact
any of the complainants.

¶14The record appears
to be silent on whether Stone signed the release letter,[2] but,
nonetheless, on August 1, 2008, Attorney Huitink sent Stone and his attorney a
copy of the Final Investigation Report. The eight-page Final Investigation Report set
forth twelve allegations of sexual harassment and summarized Stone’s responses
to each allegation during his July 23 interview.

¶15In
preparation for the August 4 Board meeting, Board members were provided with a
copy of the Final Investigation Report, Stone’s July 30 denial letter, and a
confidential memorandum prepared by Godfrey & Kahn.The confidential memorandum is not part of
the record.The Midwest investigator was
available at the meeting to answer the Board’s questions about her report, and
both Stone and his attorney were given an opportunity to give statements.Stone chose not to individually address each
of the twelve allegations set forth in the Final Investigation Report, despite
receiving a copy of the report three days prior to the Board meeting.None of the complainants were present. The Board voted unanimously to terminate Stone
for “[c]ause” because of “a pattern of … inappropriate conduct” with female
employees.

¶16Subsequently,
Stone sued Midwest for wrongful termination.Stone attempted to show the jury at the March 2011 trial that Midwest
breached the KEESA and its duty of good faith and fair dealing in terminating
him. The breach-of-good-faith claim was
premised on Stone’s contention that Midwest had not given him all of the notes and reports prepared by
the investigator prior to the August 4 Board meeting, and that therefore, he
was unable to properly defend himself.He acknowledged receiving a copy of the Final Investigation Report,
setting forth the twelve allegations of misconduct, but asserted that he was
denied a copy of the Interview Summaries, a longer version of the Final
Investigation Report.

¶17During
Stone’s direct examination at trial, he addressed each of the twelve
allegations of sexual harassment set forth in the Final Investigation Report,
rebutting each one in turn.On cross-examination,
Midwest, through its counsel, Attorney Huitink of Godfrey & Kahn, asked
Stone why he failed to individually address each of the twelve allegations at
the August 4 Board meeting like he did at trial, and suggested that Stone strategically chose not to address each
of the allegations at the August 4 Board meeting because he wanted to avoid
Midwest calling each complainant in to testify before the Board.

¶18Stone’s
attorney objected to this line of questioning, and after the jury was excused,
the trial court heard argument.Stone’s
attorney stated that the basis for his objection was that he believed Attorney Huitink
was trying to get inadmissible evidence before the jury, namely, the Interview
Summaries, which were not before the Board at the August 4 Board meeting and
which the trial court had previously ruled were inadmissible. In response, Attorney Huitink denied that it
was his intent to open the door to the Interview Summaries.Rather, he argued that he was simply seeking
to elicit Stone’s confirmation that the choice not to rebut the twelve allegations in the Final Investigation Report
at the August 4 Board meeting was strategic and designed to prevent the
complaining witnesses from being called to testify. Attorney Huitink argued that this rebuttal to
Stone’s testimony addressing each of the twelve allegations set forth in the
Final Investigation Report was fair and necessary because Midwest was not
permitted to call each complaining witness at trial.

¶19The trial court
sustained Stone’s objection, saying:

[T]he defendant is trying to suggest to the jury in a
totally convoluted manner, that it is the plaintiff who is responsible for this
board of directors not having before it whatever the number of these victims,
alleged victims were.

That
is wrong, and that would be a total mis-use [sic] of the court system to allow
that to be. In this case, and the
rulings stand, this jury is going to review what the board reviewed.Nothing more, nothing less.

¶20In the
process of making that ruling, the trial court also said that Midwest, through
its attorneys at Godfrey & Kahn, was “not just crossing the line, but going
a hundred miles beyond the line” because the trial court believed that Godfrey
& Kahn improperly “chose not to give to [Stone], the information it had
relative to the charges against him” prior to the August 4 Board meeting.The trial court, calling Godfrey & Kahn’s
actions prior to the August 4 Board meeting “almost Kafkaesque,”[3] characterized
the refusal to give Stone a copy of the Final Investigation Report unless he
agreed to confidentiality terms, as putting “a gun to the head of the
plaintiff.” Additionally, the trial court
faulted Midwest for saying, incorrectly according to the court, that the KEESA did
not require Midwest to give Stone the longer report, to wit, a copy of the
Interview Summaries.After the objection
was sustained, trial continued.

¶21Following
closing statements, the case was handed over to the jury.The jury found that Midwest did not breach
the KEESA but that it had breached the duty of good faith and fair dealing, and
awarded Stone $405,000 in damages.

¶22Addressing
the parties’ motions after the verdicts, the trial court affirmed the jury’s
verdicts, but then the court, sua sponte,
found that the breach of good faith was not created by Midwest, but by Godfrey
& Kahn through its legal advice to Midwest prior to the August 4 Board
meeting:

[I]t was Midwest but acting through its legal agent,
Godfrey & Kahn, that acted unfairly and in true bad faith. If ever in the history of Wisconsin, there was
a bad faith case, this is the bad faith case.

And, again, this wasn’t something Midwest created. Midwest went to its law firm to get good,
solid advice on the law. The law firm, …
Godfrey & Kahn, not through one or two attorneys, but through a bevy of
attorneys, engaged in a systematic denial to plaintiff of plaintiff’s right
under the contract, not getting into equal protection, the rights under the contract
to fundamental fairness.[[4]]

¶23In support
of its finding, the trial court pointed to the July 31 letter Attorney Huitink
sent to Stone’s lawyer, informing him that Midwest would not be turning over to
Stone all of the documents he requested.The trial court stated:

To require that someone respond without even knowing
the charges, to deny a person an ability to see the documents that indicate
misconduct, to deny the accused person the ability, not just to contact, have
an investigator contact those persons, but an ability to bring those persons
before the board. [sic]

¶24In short, the
trial court attributed Midwest’s bad faith to Godfrey & Kahn, stating
that:“Once [Godfrey & Kahn] became
involved with these requirements, the law firm acted as an obstacle to truth. We have no knowledge of anyone in [Midwest]
being involved in the decisions that were made in this regard other than the
law firm.” The trial court also found
that Godfrey & Kahn’s decision not to turn over all of the discovery to
Stone was contrary to the law, stating that both the KEESA and Wisconsin’s law
of good faith and fair dealing required the documents to be turned over.

¶25The trial
court then ordered Godfrey & Kahn to pay all of Stone’s legal bills and his
costs, stating:

Next, the Court orders, in the
exercise of its discretion under case law and statutory law, and to penalize
the conduct disruptive to the administration of justice in this case, that
Godfrey & Kahn, SC, counsel and agent for Midwest, be fully and totally
responsible for paying all of [Stone’s] legal bills and his costs.

It was the law firm that
egregiously and intentionally, and without any sound legal basis, established
the Kafkaesque procedures for Midwest’s termination of [Stone] for cause under
the KEESA contact.

It’s not just a question of
looking at an issue and coming up with the wrong decision. Every human being can make a wrong decision. But this was intentional. It was strategic. It was totally under the control of Godfrey
& Kahn, and it is truly outrageous.

The procedure denied to [Stone]
any semblance of fundamental fairness under the KEESA contract, and we’re not
dealing again with due process, his rights under the contract.

He never received reasonable
notice, absolute denial of his right to reasonable notice. And he never received an opportunity, a fair
opportunity, to be heard at the board meeting.

Again the board members
thought they had everything that was to be presented. They relied on their attorneys, their law firm
-- I want to make it clear, it’s their entire law firm -- in terms of the
actions they took.

The credible evidence and
reasonable inferences established that the Midwest Board relied on the law firm
of Godfrey & Kahn in terms of legal advice relative to the KEESA and [its]
interactions with the plaintiff, Mr. Stone.

The procedure that was devised
by Godfrey & Kahn was Machiavellian.[[5]]
It was contrary to the plaintiff’s KEESA rights. It was contrary to fundamental fairness. And it was knowingly devised by the Godfrey
& Kahn [l]aw [f]irm to benefit the law firm, to benefit Midwest, and to
harm [Stone], and in the process to ignore
Wisconsin law in terms of good faith and fair dealing with respect to a
contact.

¶26Before the
trial court was able to memorialize its oral ruling in writing, Godfrey &
Kahn filed, on its own behalf, the petition for a supervisory writ of
prohibition that is currently pending before this court, and simultaneously
asked us to prohibit the trial court from signing and entering judgment against
it in the underlying case.To ensure
that the issues raised by Godfrey & Kahn were not rendered moot, we issued
a temporary order barring the trial court from entering a judgment for legal
fees against Godfrey & Kahn.The
order also directed the parties to file responses to Godfrey & Kahn’s
petition.

¶27After
receiving the parties’ responses to the petition, we issued a second order,
continuing the temporary stay and remanding with directions that the trial
court conduct a hearing to afford Godfrey & Kahn an opportunity to present
evidence and argument on the propriety of the sanction against it.Godfrey & Kahn immediately moved for
reconsideration of our remand order, citing judicial bias and ethical
considerations concerning its representation of Midwest.Godfrey & Kahn noted that the only way it
could defend itself on remand against the trial court’s charge would be to
“offer[] evidence that is confidential to Midwest and protected by the
attorney-client privilege and the work-product doctrine, something it may not
do,” and that remand could create conflict issues that may deprive Midwest of
its counsel of choice.

¶28Having considered
Godfrey & Kahn’s motion for reconsideration, we entered a third order,
continuing the temporary stay barring the trial court from entering a judgment
for costs but vacating the remand order.The order imposing the temporary stay currently stands, and a judgment
against Godfrey & Kahn has not been entered.

¶29In May 2012,
we heard oral argument on the petition for a supervisory writ of prohibition. The parties advised us at oral argument and in
Stone’s response brief that although Midwest initially filed a notice of appeal
in the underlying case, the appeal has been dismissed and the underlying case
is concluded.

DISCUSSION

¶30Godfrey
& Kahn’s petition for a supervisory writ of prohibition asks us to bar the
trial court from entering a judgment against it for Stone’s attorney’s fees and
costs.As grounds, Godfrey & Kahn
contends that a judgment against it, based on its supposed pre-litigation
conduct, exceeds the trial court’s jurisdiction[6]and authority and, in this case, violates due
process.In response, Stone contends
that the trial court did not sanction Godfrey & Kahn for its pre-litigation
conduct, but rather for misconduct during trial that disrupted the
administration of justice, and that the trial court has the inherent authority
to sanction Godfrey & Kahn for that conduct.The attorney general, representing Milwaukee
County Circuit Court and Judge Flynn, argues only that Godfrey & Kahn is
not entitled to a supervisory writ of prohibition because it has an adequate
remedy by appeal.

¶31We conclude
that:(1) the record shows that the
trial court sanctioned Godfrey & Kahn for pre-litigation legal advice that
the trial court believed the law firm gave to Midwest; (2) the trial court did
not have the inherent authority to sanction Godfrey & Kahn for its pre-litigation
conduct because the conduct did not occur before the trial court or impede the
functioning of the trial court; and (3) a writ of prohibition is necessary and
appropriate under the unique circumstances of this case.

I. The record shows that the trial court’s
sanction was for pre-litigation legal advice that the trial court believed
Godfrey & Kahn gave to Midwest.

¶32Stone
contends that the trial court properly sanctioned Godfrey & Kahn for its
actions at trial, as opposed to pre-litigation legal advice that the trial
court believed Godfrey & Kahn gave to Midwest.Thus, Stone argues that the trial court
properly invoked its inherent authority when it sanctioned Godfrey & Kahn
because Wisconsin law recognizes that the trial court has inherent power to
sanction for trial conduct that is “disruptive to the administration of
justice.”SeeJensen v. McPherson, 2004 WI App 145, ¶35, 275 Wis. 2d 604, 685
N.W.2d 603 (discussing a trial court’s inherent authority to impose costs when
necessary to penalize conduct “‘disruptive to the administration of justice’”)
(citation omitted).

¶33The transcript of the trial court’s
ruling, however, belies Stone’s argument that the sanction was for Godfrey
& Kahn’s trial conduct because it shows that the trial court never
mentioned Godfrey & Kahn’s trial strategy or trial conduct at any
point.Rather, when justifying its
sanction, the trial court focused exclusively on what it believed to be Godfrey
& Kahn’s pre-litigation legal advice to Midwest.

¶34In its
oral ruling, the trial court determined that Midwest’s bad faith was actually
caused by Godfrey & Kahn’s supposed pre-litigation legal advice, saying
that the jury’s verdict against Midwest “focused … on the [termination]
procedure that was utilized, and that was a procedure where the architect, in
all respects, was the law firm of Godfrey & Kahn.”The trial court concluded that after Godfrey
& Kahn became involved with Stone’s termination it “acted as an obstacle to
truth” by refusing to disclose the Final Investigation Report unless Stone
agreed on a number of conditions, preventing both Stone and the Board from accessing
the Interview Summaries, and falsely (according to the trial court)
representing that Midwest was not required to turn over all of the
investigator’s notes to Stone under the terms of the KEESA.

And
the law firm initially said that certain data could not be given over to
[Stone] ….

Now,
that was not just false, that was absolutely false.Because in addition to the language in the
contract, under Wisconsin law, there is a good faith and fair dealing clause
imputed into every contract in the State of Wisconsin and, of course, [Godfrey
& Kahn] knew that.

[Godfrey
& Kahn] disregarded the law and created a [termination] procedure that was
Kafkaesque.…

….
[Godfrey & Kahn] demanded under the procedure that [Stone] provide his
response to the misconduct allegation without ever giving [Stone] the
misconduct allegation.

In
this case, much akin to making an agreement with the devil, in this case
[Stone] did, in fact, comply with the demands of Godfrey & Kahn and
submitted … a rebuttal, or a letter, and he did so timely.

But
the important thing is the only opportunity [Stone] had to respond in writing
was a time when he had no idea what the charges were.And, again, all of this was being
orchestrated by Godfrey & Kahn ostensibly under the law, and it was relied
upon by Midwest.

….

….
Godfrey & Kahn was orchestrating everything to do with this.

As the trial court’s own words
show, the court based its ruling entirely on what documents the court believed
Godfrey & Kahn told Midwest to turn over to Stone prior to the August 4
Board meeting.The court did not mention
Godfrey & Kahn’s trial conduct at all.

¶36Stone
attempts to show that it was Godfrey & Kahn’s trial strategy that prompted
the trial court’s sanction, but we are unpersuaded.Stone points to his objection to Midwest’s
question to him during trial, and the trial court’s remarks when sustaining
that objection.Midwest asked Stone
whether he strategically choose not to individually rebut each of the twelve
allegations against him during the August 4 Board meeting, and Stone
objected.The trial court, in sustaining
the objection, remarked that Godfrey & Kahn had unfairly advised Midwest
that it need not turn over all of the detailed statements of the complaining
witnesses to Stone prior to the August 4 Board meeting.These remarks, Stone argues, show that the
basis for the trial court’s post-verdict sanction against Godfrey & Kahn
was for its trial strategy.[7]

¶37Stone’s
argument is unpersuasive because, first and foremost, the trial court never
mentioned Godfrey & Kahn’s trial strategy when sustaining the objection to
Midwest’s question during the trial.In
fact, the trial court’s remarks only mention Godfrey & Kahn’s legal advice
prior to the August 4 Board meeting, stating that Godfrey & Kahn, through
its influence over Midwest, “chose not to give to [Stone], the information it
had relative to the charges against him.”

¶38Second,
the trial court did not sanction Godfrey & Kahn during the trial.If the
fair administration of justice was disrupted by Godfrey & Kahn’s trial
strategy, that is, by asking the objected-to question, as Stone argues,
presumably the trial court would have immediately sanctioned Godfrey & Kahn
for the question.The trial court’s
failure to do so clearly indicates that no conduct occurred that was impeding
the trial court’s ability to perform its function as a court.SeeState
v.Henley, 2010 WI 97, ¶74, 328 Wis. 2d 544, 787 N.W.2d 350 (A
trial court “should only invoke inherent power when such power is necessary to
the functioning of the court.”).

¶39In sum,
when issuing the sanction, the trial court made no mention of Godfrey &
Kahn’s behavior during trial or the firm’s trial strategy.Rather, the record shows that the trial court
focused exclusively on, what it believed to be, Godfrey & Kahn’s legal
advice prior to the August 4 Board meeting as the basis for the sanction.

¶40Moreover,
to the extent that Stone is arguing that Godfrey & Kahn’s trial strategy,
to wit, questioning Stone about his failure to rebut each of the twelve
allegations against him during the August 4 Board meeting, was “disruptive to
the administration of justice,” and that the trial court meant to sanction
Godfrey & Kahn for contempt of court, we note that the trial court lacked a
legal basis for contempt.Contempt is
defined, in relevant part, as intentional “[m]isconduct in the presence of the
court which interferes … with the administration of justice ….”SeeWis. Stat.
§ 785.01(1)(a).However, a trial
court is limited in its ability to impose such a sanction in that it may only
do so “immediately after the contempt of court,” not almost a month later.SeeWis. Stat. § 785.03(2).For all of these reasons, we conclude that
the record shows the trial court’s sanction was for Godfrey & Kahn’s
pre-litigation conduct.

II. The trial court did not have the
inherent authority to sanction Godfrey & Kahn for the law firm’s supposed
pre-litigation legal advice.

¶41The trial
court attempted to invoke its inherent authority to effectively and efficiently
administer justice when it sanctioned Godfrey & Kahn, stating:“the Court orders, in the exercise of its
discretion under case law and statutory law, and to penalize the conduct
disruptive to the administration of justice in this case, that Godfrey &
Kahn, SC, counsel and agent for Midwest, be fully and totally responsible for
paying all of the plaintiff’s legal bills and his costs.”We conclude that the trial court was without
inherent authority to sanction Godfrey & Kahn for conduct that supposedly
occurred before the court’s jurisdiction was invoked and which did not impede
the court’s ability to function or fairly administer justice.

¶42“[Trial]
courts have ‘inherent, implied and incidental powers.’” Henley, 328 Wis. 2d 544, ¶73
(citation omitted). Inherent “powers are
those that are necessary to enable courts to accomplish their constitutionally
and legislatively mandated functions.” Id. There are three areas in which the
courts have generally exercised their inherent authority:“(1) to guard against actions that would
impair the powers or efficacy of the courts or judicial system; (2) to regulate
the bench and bar; and (3) to ensure the efficient and effective functioning of
the court, and to fairly administer justice.” Id.A trial court “should only invoke inherent
power when such power is necessary to the functioning of the court.” Id., ¶74; see alsoBraunsdorf, 98 Wis. 2d at 580.

¶44However,
here, as we set forth in some detail above, the trial court sanctioned Godfrey
& Kahn for pre-litigation legal advice that the trial court believed that
the law firm gave to Midwest.The trial
court did not sanction Godfrey & Kahn for its conduct during
litigation.The trial court never
mentioned Godfrey & Kahn’s conduct during the trial, the pleadings, or the
pretrial scheduling orders.

¶45The
parties have not cited to any case, and our research has not revealed one,
which suggests that the trial court has the inherent authority to sanction
Godfrey & Kahn for conduct which occurred before the court’s jurisdiction was invoked.But there is a well-established test in our
Wisconsin jurisprudence for the inherent power to sanction: whether “such power
is necessary to the functioning of the court.”Henley, 328 Wis. 2d 544, ¶74.Whether it is ever possible for pre-litigation conduct to justify the
exercise of inherent power is an issue we do not reach because it is not
necessary to our decision.SeePatrick Fur Farm, Inc. v. United Vaccines,
Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707.Here, the record is clear that the trial
court’s sanction for pre-litigation conduct does not comport with the three
areas in which such authority is generally exercised:“to guard against actions that would impair
the powers or efficacy of the courts or judicial system”; “to regulate the
bench and bar”; and “to ensure the efficient and effective functioning of the
court, and to fairly administer justice.”SeeHenley, 328 Wis. 2d 544,
¶73.

¶46Next,
Godfrey & Kahn argues that the trial court denied the law firm due process
when it issued the sanction without notice or a hearing to determine what legal
advice Godfrey & Kahn gave Midwest during Stone’s termination hearing and
whether that advice caused Midwest’s subsequent conduct.We need not reach the due process argument
because we conclude that, based on the record, the trial court lacked the
inherent authority to sanction Godfrey & Kahn for pre-litigation legal
advice.SeePatrick Fur Farm, Inc., 286 Wis. 2d 774, ¶8 n.1.

¶47In sum,
we conclude that because the trial court lacked the inherent power to sanction
Godfrey & Kahn for its supposed pre-litigation conduct, the court acted
outside its powers and without authority.

III. A supervisory writ of prohibition is appropriate in
this case.

¶48“A
supervisory writ is a blending of the writ of mandamus and the writ of
prohibition.”[8]State ex rel. Dressler v. Circuit Court for
Racine Cnty., Branch 1, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App.
1991). A writ of “prohibition is used to
prohibit an action that is contrary to a duty,” Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin,
ch. 10, § 10.2 (Jan. 2011), and is an extraordinary remedy, which will not
issue unless the court acted without authority or without jurisdiction, Drugsvold
v. Small Claims Court for Dane Cnty., 13 Wis. 2d 228, 231-32, 108
N.W.2d 648 (1961) (“Generally, if the inferior court is acting in the proper
exercise of its power and within its jurisdiction even though the court might
have committed judicial error, the writ of prohibition would not lie.”); see alsoKowaleski v. District Court of
Milwaukee Cnty., 254 Wis. 363, 372, 36 N.W.2d 419 (1949), overruled on other grounds byState
ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 118 N.W.2d 939 (1963) (“The
writ will not issue to prohibit a court from acting in the proper exercise of
its powers and within its jurisdiction.”).

¶49A
petitioner seeking a supervisory writ for prohibition must show that:(1) “‘the duty of the trial court is plain
and it … intends to act in violation of that duty’”; (2) “‘grave hardship or
irreparable harm will result’”; (3) “‘an appeal is an inadequate remedy’”; and
(4) “‘the request for relief is made promptly and speedily.’”State
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681
N.W.2d 110 (citation omitted).“The
decision whether to issue a supervisory writ ‘is controlled by equitable
principles and, in our discretion, we can consider the rights of the public and
third parties.’”Id. (citation omitted).

¶50We
conclude that Godfrey & Kahn has demonstrated that an extraordinary remedy,
to wit, a writ of prohibition, is necessary here.

A. The trial court exceeded its
authority to act.

¶51As we set
forth earlier in this decision, we conclude that the trial court clearly acted
outside the proper exercise of its powers, seeDrugsvold,
13 Wis. 2d at 232, and State ex rel. Kowaleski, 254 Wis. at
372, when it sanctioned Godfrey & Kahn for its supposed pre-litigation
conduct.In the absence of inherent
authority, entering a judgment memorializing that decision is prohibited by the
law.

B. The
ethical considerations concerning Godfrey & Kahn’s representation of
Midwest had the trial court entered a written order or judgment amounted to a
hardship and would have inflicted irreparable harm upon Midwest.

¶52The trial
court’s ruling from the bench put Godfrey & Kahn in an ethical bind.In order to defend itself against the trial
court’s accusations of improper pre-litigation conduct, Godfrey & Kahn
would have had to reveal confidential communications with Midwest, which were
protected by the attorney-client privilege,
seeWis. Stat. § 905.03,
and perhaps, as Godfrey & Kahn argues, the work-product doctrine, see Wis.
Stat. § 804.01(2)(c).If the
trial court had entered a judgment for attorney’s fees against Godfrey &
Kahn, Godfrey & Kahn’s interests on appeal—to avoid a substantial money
judgment—would directly conflict with Midwest’s interests on appeal—to avoid
the same substantial money judgment. See SCR 20:1.8.So long as no judgment or order was entered
against it, Godfrey & Kahn, ostensibly, was free to continue its
representation of Midwest.Had Godfrey
& Kahn been forced to conclude its representation of Midwest due to these
ethical considerations, Midwest would have been denied its counsel of choice
and would have been forced to obtain new counsel unfamiliar with a case that
had been ongoing for years.We conclude
that these considerations imposed grave hardships upon both Godfrey & Kahn
and Midwest and would have resulted in irreparable harm to Midwest, suggesting
that a supervisory writ for prohibition, rather than an appeal, is the
appropriate course of action in this case.

C. An appeal or petition for leave to appeal a nonfinal
order is not available to Godfrey & Kahn.

¶53To be
appealable, an order “must be in writing and filed.”Ramsthal Adver. Agency v. Energy Miser, Inc.,
90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979); see alsoHelmrick v. Helmrick, 95 Wis. 2d
554, 556, 291 N.W.2d 582 (Ct. App. 1980) (“An oral ruling must be reduced to
writing and entered before an appeal can be taken from it.”).Here, the trial court did not enter a written
order or judgment against Godfrey & Kahn from which it can appeal.As such, we conclude that an appeal or a
petition to appeal from a nonfinal order are inadequate remedies, as neither is
available to Godfrey & Kahn.

¶54We
recognize, however, that a written order from which Godfrey & Kahn can
appeal has not been entered at our direction, as requested by Godfrey &
Kahn.However, we conclude that the
unique circumstances of this case, as demonstrated in more detail above,
necessitated the order temporarily barring the trial court from entering a written
order.

¶55Godfrey
& Kahn filed its petition for a supervisory writ of prohibition days after
the trial court made its ruling from the bench, before the trial court even had
time to enter a written judgment.No
party argues that its petition was not promptly filed.

E. Considering all equitable principles and exercising our
discretion accordingly, we conclude that a writ of prohibition is appropriate
under this unique set of facts.

¶56A writ of
prohibition is an extraordinary remedy which will not issue unless the court
acted without authority or without jurisdiction.Drugsvold, 13 Wis. 2d at 231-32; see alsoState ex rel.Kowaleski,
254 Wis. at 372.That is exactly the
case with which we are presented here.Given that the trial court clearly exceeded its authority in ordering
Godfrey & Kahn to pay the opposing party’s attorney’s fees for supposed
pre-litigation conduct and that permitting the trial court to enter an order to
that effect—and thereby enabling Godfrey & Kahn to file an appeal—would put
an unnecessary hardship on both Godfrey & Kahn and Midwest, we conclude
that a supervisory writ of prohibition is appropriate in this instance.SeeKalal,
271 Wis. 2d 633, ¶17.Such “‘an
extraordinary and drastic remedy’” is necessary given the unique circumstances
of this case.Seeid. (citation omitted).

CONCLUSION

¶57In short,
the trial court acted without authority when it sanctioned Godfrey & Kahn,
and a writ of prohibition, preventing the court from memorializing its oral
ruling, must issue.A trial court’s
inherent powers are well-established and based on ensuring that our courts have
the power to fulfill their very important function.But here, because the trial court invoked its
inherent power to sanction a law firm for behavior that was not before the
court or in any way necessary to the trial or the court’s ability to conduct
its judicial business, it erred.

By the Court.—Writ granted.

[1]All references to the Wisconsin Statutes are
to the 2009-10 version.

[2]The parties imply in their briefs that Stone did sign
the release letter, but we cannot locate any such letter in the record and the
parties do not provide us with a record cite in support of that proposition.

[3] Franz Kafka was an “Austrian writer whose
stories and novels … concern troubled individuals in a nightmarishly impersonal
world.”The
American Heritage Dictionary of the English Language 980 (3d ed.
1992).The adjective “Kafkaesque” has
been used to describe things which are “characteristic of Franz Kafka or his
writings,” that is, things “[c]haracterized by surreal distortion and usually
by a sense of impending danger.”Id.

[4] We note that the trial court’s comments
came after the jury found that Midwest had not breached the terms of the KEESA.

[5]Niccolò Machiavelli was an “Italian political theorist
whose book The Prince (1513)
describes the achievement and maintenance of power by a determined ruler
indifferent to moral considerations.”The American Heritage Dictionary of the English
Language 1076.The adjective
“Machiavellian” is used to describe a thing “characterized by expediency,
deceit, and cunning.”Id.

[6]Godfrey & Kahn argues that the trial court lacked
personal jurisdiction over the law firm because “[n]o summons or other process
was ever issued here that would have permitted the [trial] court to acquire
personal jurisdiction over Godfrey & Kahn for matters predating the
underlying litigation.”We do not reach
the personal jurisdiction and due process arguments because we resolve the case
on the lack of inherent authority grounds.SeePatrick Fur Farm, Inc. v. United
Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d
707.

[7]Although not necessary to our decision, we also note
that Stone’s argument that Godfrey & Kahn’s impeachment trial strategy was
improper lacks support in the record.The record shows that each of the twelve allegations levied against
Stone were contained in the Final Investigation Report, as were his summary
responses to each allegation.The record
also shows that Stone received a copy of the Final Investigation Report on
August 1, three days before the August 4 Board meeting.Because Stone had access to the report days
before the meeting, even though he was not given a copy of the Interview
Summaries, it is unclear to us why it was improper to attempt to impeach Stone
as Godfrey & Kahn did.

[8]A writ of “mandamus is used to force the performance
of a duty, whereas [a writ of] prohibition is used to prohibit an action that
is contrary to a duty.The close
relationship between the two writs is often recognized by petitions
characterizing the relief sought … simply as ‘supervisory’ relief.”Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, ch. 10,
§ 10.2 (Jan. 2011).